On Death Row in Ohio: Is Kevin Keith an Innocent Man?

When last we left the sorry state of capital punishment in Ohio, hapless prison officials were attempting to execute the same man twice after failing to find a usable vein the first time they put him onto the gurney. They did not succeed -- the death row inmate, Romell Broom, is still alive -- but the embarrassing episode did cause the Buckeye State finally to reform its dubious lethal-injection protocols. That's the good news. The bad news is that a new case, the case of Kevin Keith, shows once again how far Ohio is from affording capital suspects even the most basic constitutional rights.

The horrible story starts, as many capital cases, do, with the sale of crack cocaine. At Keith's trial, prosecutors alleged, and jurors agreed, that on Feb. 13, 1994, Keith murdered three people in a spray of bullets, including a 4-year-old girl, because he believed the adults had informed on him to police investigating Keith's illegal drug sales. Several eyewitnesses came forward to testify against Keith. Notably, Keith's trial attorneys did not present mitigating evidence on his behalf during the sentencing phase of his trial, at which Keith received the death penalty.The first round of appeals ended in 1998. A second round of appeals, this time before the federal courts of Ohio, ended in 2008. And another set of appeals ended last week.

Keith now faces a Sept. 15 execution date while claiming still to be an innocent man. There is nothing unusual about such proclamations. They occur all the time and almost always fail. But the Keith case offers some compelling reasons why a new trial or at least a commutation of Keith's capital sentence may be warranted. Indeed, Keith's formal request for clemency to Gov. Ted Strickland reads like a Scott Turow novel. The discovery of new witnesses? Check. Whiff of prosecutorial misconduct? Check. Poor police work? Check. The presence of another, more likely suspect? Check. Terrible defense counsel? Check. The victim's family concerned that the wrong man has been tagged? Check.

Given the bipartisan legal and political support for Keith, including from some 31 former judges and prosecutors, it's a little surprising that the state courts of Ohio and the federal 6th U.S. Circuit would have allowed this capital conviction to get this far. As a lawyer, what strikes me most about the Keith clemency request -- now under consideration by Strickland -- are the pesky facts supporting the condemned man's request for a new trial. Ohio claims these new problems are "immaterial surplusage to the facts which clearly support" Keith's conviction and sentence. But a lot of otherwise reasonable people, locals who have been living this case for nearly two decades, evidently aren't so sure.

For example, at the time of Keith's trial, the police mentioned a witness -- Amy Gimmets -- who was alleged to have given them the name "Kevin" as the shooter in the heinous murder. What defense attorneys discovered, however, is that "Amy Gimmets" evidently does not exist. In their clemency brief, they wrote:

"The trial court relied on Capt. Stanley's claim that Amy Gimmets had given him the name Kevin . . . Knowing Amy Gimmets is a fake name would not have only been helpful there, but also it would have been powerful evidence to the jury, as it would have further undermined the reliability of [prosecution witness] Richard Warren's identification [of Keith as the shooter] and the police methods used to obtain it."

Keith's attorneys also argue that 911 police logs do not support the police and prosecution theories linking Keith to the triple murder. The tapes show that one important witness -- John Foor -- did not, as prosecution witnesses had suggested, call the police to tell them the name of the shooter was "Kevin." Defense attorneys say that the tapes also show an important discrepancy in the testimony of a trial witness who claims she found a shell casing -- "the sole piece of physical evidence the police tenuously connected" to Keith, the lawyers say -- near the scene of the crime.

On top of these structural defects in the Keith conviction, there is also nagging evidence which indicates that another man, Rodney Melton, may have committed the crimes for which Keith is about to be executed. Of Melton, Team Keith wrote:

" . . . the police never looked into the most likely suspect -- Rodney Melton . . . Rodney was seen around the area shortly after the shootings; he had the same type of car the shooter drove; the license plate of his car matched the partial number the police lifted from the snow; he knew the type of ammunition used . . . he has an extensive and violent criminal record, including murder; he told a police informant he was paid $15,000 to cripple a family member of several of the shooting victims; and the night of the shootings Rodney showed up at the hospital to tell that family member that the death of his family was what he gets for snitching."

What does Ohio say about all this? Plenty. Here's a portion of the state's response to Keith's clemency request:

"Keith attempts to deceive this Board into believing he is actually innocent of these heinous murders. Not one of his claims directly attacks the conviction. He merely attacks, as he has throughout his legal appeals, the immaterial surplusage to the facts which clearly support his conviction and sentence. Multiple witnesses identified Keith as the perpetrator of the crime. Keith was the person with the motive to commit the crime. Keith had access to the vehicle seen at the scene of the crime and which left behind a partial license plate impression in the snow. A shell casing was located across the street from where Keith picked up one of his two girlfriends two hours after the murder. Additionally, the jury, who was able to judge the credibility of the witnesses, did not believe his alibi. Nor did the jury believe Rodney Melton was the killer, despite Keith putting forth that theory at trial."

A generation ago, following the renewal of capital punishment in America in the wake of the U.S. Supreme Court ruling in Gregg v. Georgia, it was left to the courts to resolve the types of thorny questions posed by the Keith case. Experts at evaluating evidence, trial and appellate judges were encouraged, or at least not thoroughly discouraged, to dig down deep into disputes like this, to question law enforcement work more rigorously, and to not simply cast off onto the executive branch (via clemency) the responsibility of acting as a safety net to ensure that no innocent man or woman is ever executed. The courts took care of these cases and governors, generally, did not.

In the intervening decades, however, all that changed. Conservative jurists, led by the late Chief Justices Warren Burger and William Rehnquist, have dramatically limited the arrest, trial, and post-conviction rights of men like Keith. The lower courts and the state courts and the Congress and state legislators around the country have done likewise. The result is the Keith case. Despite obvious questions about the man's conviction, and despite atrocious procedural rules that often block meaningful appellate review, the very prosecutors who sanctioned a sloppy trial and then defended its result now evidently get to say to the governor, as they did at Keith's clemency board hearing last week: "Furthermore, both the state and federal courts have repeatedly upheld his conviction, even though Keith made the exact same claims he is making to this board."

For Keith, it's not surprising that the whole thing smacks of a three-card monte game. The police and prosecutors play fast and loose. The courts now are bound not to ask too many questions following a jury's verdict. And the governor's mansion is interested in politics more than in the Constitution. It's hard to say today whether Keith deserves a better fate. But the rest of the citizens of Ohio surely do.

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Kathy

I saw a case on Forensic Files recently in which evidence shows a convicted man was NOT the murderer in a 20 year old case. Twice the wife of the convicted man brought evidence to support her husbands innocence to the courts to request a new trial & twice it was rejected by the judge. Arrogance on the part of the judge & prosecutor could be the only reason for the rejections. The wife continues to work the case on her own dime & time & it is outrageous that the judicial system is so blatantly wrong as in this case & yet is allowed to throw away a man's life because of that. This is why the death penalty is NOT the answer to all murder convictions. Too many questionable cases on death row & too many not being re-tried, even though there have been convictions overturned & wrongly imprisoned people released.

Andrew, It is pretty obvious from the article that you are anti-capital punishment. I am also against people who put themselves into such a predicament. But if they do the misdeed, then they must get the punishment. It is conclusive this guy did the misdeeds. (See the link below provided by Stephen.) Exhaustive appeal after appeal is a true distortion of the judicial system. Looking for a technicality as a way out is cowardly.

i believe they should do another trial... times have changed and its very possible that he could be innocent...and dont judge just cause he is a black male that is obviously a racist person right there... all evidence needs to be accounted for (old and new)...i will say im not religious one bit i believe there may be a god and thats it, but i do believe EVERYTHING HAPPENS FOR A REASON OR A MIRACLE (they didnt find a usable vein). Obviously he is a drug addict but may also just have a vein problem; either way, he was supposed to die that day and didnt.

There are other veins that could have been used if they could not find one in his arm. The body is full of them. He was and is to be put to death and should be. Mine and your tax dollars are keeping this man alive because of no usable vein. Boo hoo. There are more then one way to give a death penalty. Pick one and go with it. I do not want to pay for him to sit on death row any longer but that really is not the story here. It is about a man who could be put to death for a crime he did not committ.

For a little balance, please go to http://www.drc.ohio.gov/Public/clemency.htm and download the clemency report for this guy. What you have read under this byline and what you will see in this Clemency Board's Report will be like night and day. All of the hand-wringing in the article can be answered nearly point for point. Perhaps it is remotely possible they have the wrong guy, but it is so remote as to be non-existent. I will pray for this man regardless of what he has done, as well as for the souls of his three victims.

I went to the website and read the clemency report. It mirrors this article. Please quote for all of us the section of the report that resolves the issue of the non-existent witness to any kind of reasonable satisfaction.

We have had several that has been in prison waiting to be face the death penalty to only find out that someone else had done the crime, They were able to prove with the DNA that he or she didn't commit the crime. Before DNA mistakes were made. I am for the death penalty but when in doubt it shouldn't be given. At the same time if such doubt shows that the death penalty isn't justified then perhaps he should be let free. The Bible says Vengeance is mine thus saith the Lord. If letting him free turns out to be a mistake and the Good lord wants him dead he will die. The Good lord can also bless him and use him in an awesome way if the jury made a mistake in the first place.

This is a blatant outrage and an all too common occurence for Black men and youth is this country. It is in fact part of a continuing history, begun when Black people were first brought against their will to this country. The subjugation of Black men was essential to the success of slavery. The freeing of the slaves did nothing to stem the tide of criminal harassment and persecution against the Black man. As a nation, it is simply time to reconcile the incredible injustices - judicially, politically, economically, educationally, socially, and health-related that have been the commonplace experience of Black America and especially Black men. How do the people who present this miscarriage of justice as if it were justice, and so adamantly, sleep at night or look at themselves in the mirror, particularly in this time of such consciousness raising national and world events? Do they not see what they do? I wonder how many of them would with moral indignation defend the right of a fetus to be born but do not think twice about the execution of an innocent man even though they have been presented with irrefutible evidence of his innocence, including widespread institutional malfeasance. Individuals with power and a system of criminal justice run amuk are being given a chance to right an incredible wrong. What is there to fear in staying the execution of an innocent man? In truth, there could even be a bit of redemption on the other side. Nothing we could ever do would restore the lost years of this man's life or the lives of tens of thousands of other Black men, youth, and boys who have suffered and continue to suffer a wide range of injustices. But as we begin to right some of America's most awful wrongs (and let's not be in denial, let's just not go there) we might be able to make a contribution to the streams of American humanity who are continuing to fight for a better quality of for everyone, not just for the protected and privileged few. Indeed, it is certainly possible and maybe even probable that the very survival of humanity is dependent on righting dangerously tipped scales of justice all across America and all around the world.

We are only reading one side of this story. From what I have read this man deserves a new trial. It seems as though no one else was investigated for this crime. How can a man be convicted if the one witness is not even real? How can a man be convicted if the plates on his car do not match the partial that was left in the snow? Why was this Melton not looked into if his car plates matched the partial? The police tend to get tunnel vision and refuse to look at anyone else for the crime. So the man gets a new trial and if found guilty again then he is guilty but as they say there are 3 sides to all stories. Both person's sides and then the truth.

I am amazed that he is given so much time for appeals and to conjure up new ways to blame others and yet the victims are long gone. One appeal and his execution needs to be completed within a year of the conviction...no more excuses, no more time to create new scenarios. The victims do not get that time; they are dead!!!!

I think that it's bad if we convict the wrong man but even worse if we let him go and he did do it. either way i wouldn't want that on my concents it's like the saying dam if we do dam if we don't. An eye for A eye , but if theirs any dought in the victims family then it's possible he didn't do it because your inner toisstion is usually right so fight for what you believe in otherwise our world will be all computerized in the near future. SPEAK UP & SPEAK OUT IT'S OUR WORLD. Angela Salvato